Wednesday, July 02, 2014

More Than Fraudulent Scheme Needed for Sophisticated Means Enhancement

US v. Adepoju: Adepoju was involved in a bank fraud scheme, along with another person who happened to be a confidential informant. Adepoju provided the CI with false identification documents to use to open two bank accounts. Adepoju was then to provide checks to the CI for deposit, then split the cash withdrawals with the CI and the CI's "insider" at the bank. As a result, Adepoju was charged with two counts of bank fraud and identity theft. After a jury convicted him of all counts, the district court sentenced Adepoju to 70 months in prison.

Adepoju appealed his convictions to the Fourth Circuit, which were affirmed, as well as his sentence, which was vacated. On the convictions, the court rejected Adepoju's argument that there was insufficient evidence to support them, based largely on the testimony of the CI. As to his sentence, however, the court concluded that the district court had incorrectly applied a two-level Guideline enhancement for use of a sophisticated means in the scheme. The court concluded that the Government had failed to prove the enhancement applied, noting that it takes more than mere fraud to qualify as "sophisticated." The district court had erred by essentially putting the burden on Adepoju to disprove sophistication. Finally, the court rejected an Allenyne-based due process argument with regard to Adepoju's two-year sentence on the identity theft charge, noting that there is only one possible sentence for such a conviction, not a staggered series of mandatory minimums.

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